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The Kompass and Kirsch Groups attempt a post hoc rationalization of Vitas conduct. They argue that the severe economic crisis in Thailand crippled Vita and prevented it from responding. The Thai economic crisis, however, likely would have affected all respondents in the review. Commerce emphasizes that two other respondents were not represented by counsel but managed to respond to the questionnaires. See, e.g., Siam Fruit Canning Co. Supplemental Questionnaire Response (Feb. 12, 1998), at 1, P.R. Doc. 139 (submitted to Commerce without counsel); Prachuab Fruit Canning Co. Supplemental Questionnaire Response (Feb. 3, 1998), at 1, P.R. Doc. 118 (submitted to Commerce without counsel). Vita, too, had informed Commerce it would continue to participate despite the economic difficulties. If the situation worsened, Vita should have informed Commerce and provided a proper explanation. See, e.g., 19 U.S.C. § 1677m(c)(1) (1994) (requiring respondent to notify Commerce if it is unable to submit information requested).
The Kompass and Kirsch Groups also argue that Vita was a first-time participant and Commerce should have made it clear that ceasing communication would result in the use of adverse inferences. Commerce, however, repeatedly warned Vita that a failure to provide information would result in the use of facts available. See Letter from Commerce to Vita (Jan. 2, 1998), at 2, Pl.s App., Ex. 12, at 2 (notifying Vita that facts available would be used if Vita did not respond to supplemental questionnaire for section A); Letter from Commerce to Vita (Jan. 13, 1998), at 1, Pl.s App., Ex. 15, at 1 (notifying Vita that failure to respond to Section D of questionnaire would lead to use of facts available as set forth in Section 776(b) of Act); Letter from Commerce to Vita (Jan. 27, 1998), at 2, Pl.s App., Ex. 17, at 2 (notifying Vita that failure to respond to supplemental questionnaires for sections B and C would result in use of facts available as defined in glossary of original questionnaire). Contrary to the Kompass and Kirsch Groups assertions, Commerce attempted to assist Vita as well as warn Vita of the consequences. With no response from Vita forthcoming, further assistance from Commerce was not warranted.
Accordingly, the court sustains Commerces finding that Vita did not act to the best of its ability.
II. Corroboration of Adverse Facts Available Rate
In the underlying LTFV investigation, Commerce assigned Vita the all-others rate of 24.64 percent. Final Determination, 60 Fed. Reg. at 36,776. In the Final Results of this administrative review, Commerce assigned Vita a margin of 51.16 percent. Final Results, 63 Fed. Reg. at 43,673. This margin represents the highest calculated margin from a cooperative respondent, Siam Agro Industry Pineapple and Others Company (SAICO), in the original LTFV investigation. Id. at 43,665.
The Kompass and Kirsch Groups contest the use of the highest calculated margin in the underlying LTFV investigation. They assert that the margin is not relevant because it does not reflect the difficulties of Vita's situation. Commerce responds that the rate assigned to Vita is both corroborated and relevant. It argues that it has used a margin properly calculated from a fully cooperative respondent from the underlying LTFV investigation. Additionally, Commerce contends SAICO's business practices are representative of the Thai pineapple industry. The court agrees.
Pursuant to 19 U.S.C. § 1677e(c), Commerce must corroborate any secondary information it relies on from independent sources reasonably at its disposal. 19 U.S.C. § 1677e(c).4 According to the Statement of Administrative Action ("SAA"), [c]orroborate means that the agencies will satisfy themselves that the secondary information to be used has probative value." SAA accompanying the Uruguay Round Agreements Act (URAA), H.R. Rep. No. 103-826(I) at 870 (1994), reprinted in 1994 U.S.C.C.A.N. 3773, 4199.
In Ferro Union, this court instructed Commerce that the margin selected has to be reliable and relevant. 44 F. Supp.2d at 1335. Furthermore, Commerce must use a margin that bears a rational relationship to the respondent or the past practices of the industry. Id. at 1334-35 (citations omitted).
The Kompass and Kirsch Groups challenge Commerces use of SAICOs margin because it is not an attempt to find Vitas true dumping margin. Once a respondent refuses to respond to a questionnaire or does not supply Commerce with an adequate explanation for refusing to respond, Commerce no longer focuses on calculating the true margin but instead must focus on determining an adverse margin that will induce cooperation in the future.
Under the pre-URAA law, the Federal Circuit Court of Appeals approved Commerces use of the highest margin from prior proceedings as best information available (BIA). Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Cir. 1990) (affirming use of highest calculated margin from prior administrative reviews as BIA for respondent who provided deficient submissions); see also Mitsuboshi Belting Ltd. v. United States, No. 93-09-00640, 1997 WL 118397, at *3 (Ct. Intl Trade Mar. 12, 1997). This court has recognized that an uncooperative respondent cannot control the results of the administrative process via its own unresponsiveness. Mitsuboshi, 1997 WL 118397, at *3. Moreover, the agency relies on the common sense inference that the highest margins are the most probative because the respondent did not provide information to rebut this inference. Id.
The Kompass and Kirsch Groups next attempt to cast doubt upon Commerces choice of SAICOs margin by claiming that depreciation of the baht is an indicator that Vita was less likely to engage in LTFV pricing. The record does not reveal any evidence in support of this contention nor do the Kompass and Kirsch Groups indicate that any record evidence supports their assertion. On the contrary, record evidence indicates that Vita may have engaged in LTFV pricing in Germany. Commerces Memorandum to File, at 1-4, Pl.s App., Ex. 14, at 1-4.
Commerce also asserts that SAICO was a fully cooperative respondent, representative of the Thai pineapple industry. See Final Results, 63 Fed. Reg. at 43,665. Commerce justifies its finding based on two facts. First, no record evidence indicates that SAICOs practices differed from the rest of the Thai pineapple industry. Id. Second, the inclusion of SAICOs rate5 in the calculation of the all others rate in the original LTFV investigation also supports the position that SAICO was representative of the industry.6 Id.
Finally, the Kompass and Kirsch Groups argue that Vita, like Madhya in Stainless Steel from India, should receive the all-others rate and not the highest calculated margin from the original LTFV investigation. See Stainless Steel Bar from India, 64 Fed. Reg. 13,771, 13,774-776 (Dept Commerce 1999) (giving Madhya the all-others rate because it responded to Commerces questionnaires, but in an untimely fashion). The crucial difference between Madhya and Vita is that Madhya responded to Commerces questionnaires and never ceased communicating. See id. at 13,774. Vita, on the other hand, never responded to Commerces five separate attempts to elicit a response from Vita.
Commerce gave Vita ample opportunity to demonstrate that the all-others rate was still the appropriate rate. Vita either should have supplied Commerce with the information requested or it should have provided a proper explanation for its failure to participate further in the review.
For the foregoing reasons, the court affirms Commerces use of adverse facts available and the margin Commerce assigned to Vita.
Jane A. Restani
Dated: New York, New York
This 31st day of July, 2000.
4. 19 U.S.C. § 1677e(c) states:
When the administering authority or the Commission relies on secondary information rather than on information obtained in the course of an investigation or review, the administering authority or the Commission, as the case may be, shall, to the extent practicable, corroborate that information from independent sources that are reasonably at their disposal.
5. The Kompass and Kirsch Groups challenge Commerces cost of production methodology for calculating SAICOs margin. The Federal Circuit, however, affirmed Commerces cost of production methodology. See Thai Pineapple Public Co. v. United States, 187 F.3d 1362, 1369 (Fed. Cir. 1999).
6. Given that SAICOs margin is rational and relevant, the mere fact that it is three years old is an insufficient basis to invalidate the margin. The cases that the Kompass and Kirsch Groups cite for support to invalidate SAICOs margin contain facts that differentiate them from this case. In Manifattura Emmepi S.p.A. v. United States, the court invalidated the use of an eight year old calculated margin that bore no relationship to respondent because respondent was not in the market at the time and, after participating in the prior review, had received a zero calculated margin. 16 CIT 619, 623-24, 799 F. Supp. 110, 114-15 (1992). In contrast, Vita had received the all others rate of 24.64 percent in the original LTFV investigation and its marked lack of cooperation would have required a margin higher than the all others rate to induce cooperation in subsequent reviews. In Ferro Union, Commerce tried to rely on a margin that was eight years old and most of the information used to calculate that margin was based on best information available. 44 F. Supp.2d at 1335. In this case, Commerce used a properly calculated margin and the record did not reveal any evidence undercutting its validity for this review.